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Virgílio Afonso da Silva
This chapter calls for the abandonment of the simplistic dichotomy currently used to describe any system of judicial review—the “United States” or “European” models of judicial review. Drawing on extended examples from France, Brazil, Portugal, and the United States, as well as a survey of many other countries, the author argues that countries can be classified deceptively under the current schema. And, even when systems are categorized correctly, such a dualistic perspective ignores other, potentially more important, differences between systems such as differences in timing, appointment of judges, composition of the bench, term, access to the court, deliberation and decision-making processes, and effects of the court’s decisions. The chapter concludes by calling for an exploration of typologies which can move from the current dualism to a more expansive classificatory vocabulary in order to foster richness of discussion and research.
Jamal Greene and Yvonne Tew
This chapter develops a basic taxonomy of approaches to constitutional history based on types of history, patterns of use, and type of provision. Within these categories, the variations in the use of constitutional history include purposes/expectations, intention/meaning, texts/backdrops, pluralist/dispositive, and interpretation/rhetoric. The authors then apply this taxonomy to the practices of constitutional courts in the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore. From this survey, the chapter concludes that history plays a variable role across constitutional systems, depending on the country’s unique historical, cultural, and political traditions.
This chapter approaches comparative constitutional law from a court-centered perspective rather than a rights-oriented perspective. The author discusses the role of new constitutional courts in forestalling a return to an autocratic past and in acting as the handmaidens of a new democratic order, by considering court creation in a broad swath of European countries and South Africa. The chapter pays particular attention to the specific role that the Constitutional Court in South Africa played in moving the country from a provisional to a final constitution. Next, the author reviews the role of constitutional courts in new democracies in aiding quick transitions to basic democratic governance before constitutional drafters are able to reach full agreement on and flesh out the specifics of constitutional compromise. Finally, the chapter assesses how courts in Argentina, Columbia, South Africa, Germany, India, and Israel have survived confrontations with political power with varying success.
Edited by Erin F. Delaney and Rosalind Dixon
Wen-Chen Chang and Yi-Li Lee
This chapter examines the dynamics of having a constitutional court separate from the ordinary appellate structure of a court system, using South Korea and Taiwan as comparative case studies. The authors open by examining the differences that choices of institutional design, appointment mechanisms, and contextual dynamics make in the development of systems of constitutional review. They find that notwithstanding a clear jurisdictional distinction, tension nevertheless emerges between the Constitutional Court and the Supreme Court in South Korea, whereas in Taiwan, where there is not a clear division of jurisdiction, the Constitutional Court, Supreme Court, and Supreme Administrative Court have collaborated. This chapter concludes by suggesting that institutional design, appointment mechanisms and contextual dynamics are the key to explaining the competitive or collaborative power configurations among multiple top courts.
A Comparative Analysis of Regionalist Negotiations
Rosalind Dixon and Tom Ginsburg
This chapter explores the strategic foundations of judicial review, by developing the idea of judicial review as a form of political “insurance”. Building on prior work on the insurance function of constitutions and courts, it develops a three-part typology of constitutions as a form of political insurance: first, the idea of constitutions as a form of power-based insurance; second, as a form of personal insurance for political leaders; and third, a form of policy-based insurance for elites facing a loss of internal or external political influence. Each type of insurance, the chapter suggests, implies somewhat different choices at the level of constitutional design—that is, in the design of constitutional language, amendment rules, constitutional courts, and procedural rules of access to judicial review. Each also raises distinct risks of “nullification” or “cancellation”. The chapter explores these risks, and offers new insights about how and when they are most likely to arise: Constitutional insurance, it ultimately suggests, is most likely to be effective where it is multi-sided in nature, offering some potential pay-off to all major political players. The chapter illustrates these arguments with examples from South Africa, Mexico, Italy, Japan, Taiwan and Romania, among other countries.